Case No. 13-4171 Askew v. Bradshaw AEDPA does not define the term “second or successive.” See, e.g., Slack v. McDaniel, 529 U.S. 473, 486 (2000) (characterizing “second or successive” as a “term of art”). In a series of cases interpreting AEDPA, the Supreme Court made clear that “second or successive” does not mean “all § 2254 applications filed second or successively in time.” Panetti v. Quarterman, 551 U.S. 930, 944 (2007). Rather, the Court has interpreted the phrase in light of its own decisional law, including pre-AEDPA abuse-of-the-writ principles that asked whether a petitioner already had a full and fair opportunity to raise the relevant claim in the district court.

Under the abuse of the writ doctrine, a numerically second petition is ‘second’ when it raises a claim that could have been raised in the first petition but was not so raised, either due to deliberate abandonment or inexcusable neglect.”).

In Magwood, however, the Court clarified that the text of AEDPA requires courts to interpret “the phrase ‘second or successive’... with respect to the judgment challenged.” Magwood, 561 U.S. at 333. Magwood requires a two-stage inquiry: A district court faced with the question of whether a habeas application is “second or successive” must first ask whether the petitioner is challenging the same state-court judgment that he did in an earlier habeas application. Id. at 337 (emphasizing the need to “distinguish between § 2244(b)’s threshold inquiry into whether an application is ‘second or successive,’ and its subsequent inquiry into whether claims in a successive application must be dismissed” (emphasis added)). This question is answered on the sole basis of whether the state court entered a new “judgment,” without reference to the claim-focused principles adopted by the Court’s post-AEDPA decisions. See id.

Case No. 13-4171 Askew v. Bradshaw at 336 (rejecting proposition that “abuse-of-the-writ rules, as modified by AEDPA under § 2244(b)(2), apply... to an application challenging a new judgment”).

If the petitioner is not challenging the same state-court judgment that he did in an earlier habeas application, the application is not “second or successive” and the restrictions imposed by 28 U.S.C. § 2244(b) do not apply. Magwood, 561 U.S. at 342. By contrast, if the petitioner is challenging the same state-court judgment that he already challenged or could have challenged in a previous federal habeas application, the district court must consult abuse-of-the-writ principles, as modified by AEDPA, to ascertain whether or not the petitioner’s claims must meet the stringent requirements of 28 U.S.C. § 2244(b). See Magwood, 561 U.S. at 335 n.11 (explaining that Magwood does not abrogate the application of abuse-of-the-writ principles to second-in-time petitions attacking the same judgment); see also id. at 343 (Breyer, J., concurring in part and concurring in the judgment) (“[I]f Magwood were challenging an undisturbed state-court judgment for the second time, abuse-of-the-writ principles would apply, including Panetti’s holding that an ‘application’ containing a ‘claim’ that ‘the petitioner had no fair opportunity to raise’ in his first habeas petition is not a ‘second or successive’ application.” (emphasis added)).

Applying the above-described framework, the Magwood Court held that Billy Joe Magwood’s second-in-time habeas application, which attacked a new sentence that Alabama courts had imposed as a direct consequence of Magwood’s first-in-time habeas application, was not “second or successive.” Id. at 342 (majority opinion). This was true even though one of Magwood’s claims was identical to a claim that he had raised in his first habeas application. Id.

at 327–28; see also id. at 339 (“This is Magwood’s first application challenging [an] intervening judgment. The errors he alleges are new.... An error made a second time is still a new error.”).

Accordingly, Magwood dictates that if Askew’s second-in-time habeas petition challenges a new Case No. 13-4171 Askew v. Bradshaw sentence that created a new judgment, Askew’s petition is not “second or successive” within the meaning of AEDPA.

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In her appellate brief, the Warden urges that Magwood does not apply to Askew’s case because, in the Warden’s view, “Askew’s grounds for relief were challenges to his conviction rather than his resentencing.” Appellee Br. 25. The Magwood Court explicitly left open the question of whether a habeas petitioner may challenge his undisturbed conviction through a second-in-time habeas application that follows a resentencing proceeding without having to overcome 28 U.S.C. § 2244(b)’s restrictions. Magwood, 561 U.S. at 342. In the meantime, this court has answered that question in the affirmative in King, which we decided while Askew’s appeal was pending.

King involved an Ohio prisoner, DeLawrence King, whose first federal habeas corpus application was denied in 2006. King, 807 F.3d at 156. After this court denied King a certificate of appealability, he asked the Ohio Court of Common Pleas to vacate his sentence because the sentencing court had not advised him of the post-release conditions of control that accompanied his conviction. Ibid. The court resentenced King to a longer term of imprisonment than he had originally received, and the Ohio Court of Appeals affirmed. State v. King, No. 10CA009755, 2010 WL 3619914, at *9 (Ohio Ct. App. Sept. 20, 2010). King failed to file a timely appeal to the Ohio Supreme Court, which denied his motion for a delayed appeal. King then brought a second federal habeas application challenging his undisturbed conviction and argued that Magwood’s judgment-based approach required the district court to consider his application, which was the first to follow his resentencing proceedings, as a first-in-time petition. See King, Case No. 13-4171 Askew v. Bradshaw 807 F.3d at 156. The district court disagreed and dismissed King’s petition as “second or successive.” Ibid.

2010), we explained that because “a judgment in a criminal case ‘includes both the adjudication of guilt and the sentence[,]’... the existence of a new judgment permits a new application to attack the sentence, the conviction, or both.” King, 807 F.3d at 157–58 (quoting Deal v. United States, 508 U.S. 129, 132 (1993)). Accordingly, if Askew’s second-in-time application follows a new “judgment,” his application is not “second or successive” irrespective of whether Askew challenges his new sentence (as Askew argues) or his undisturbed conviction (as the Warden argues and the district court found).

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Although our opinion in King eliminated the distinction between second-in-time habeas applications that challenge a new sentence and those that challenge an underlying conviction, we did not exclude the possibility that minor amendments to a judgment, such as those that correct clerical or technical errors while leaving a petitioner’s conviction and sentence intact, may not create a new “judgment” within the meaning of Magwood. Indeed, in In re Mackey, No. 13th Cir. June 26, 2014), we held in an unpublished order that an Ohio court’s reopening of a petitioner’s sentence merely to enter post-release conditions of control was a simple “correct[ion] [of] a technical error” that did not save the petitioner’s subsequent second-in-time Case No. 13-4171 Askew v. Bradshaw habeas application from the requirements of 28 U.S.C. § 2244(b). Mackey, No. 13-3072, slip op.

at 6; see also In re Lampton, 667 F.3d 585, 589–90 (5th Cir. 2012).

The Warden argues that Askew’s resentencing proceeding, as in Mackey, did not create a new “judgment” that “trigger[s] the operation of Magwood” and King. Lampton, 667 F.3d at

589. The Warden explains that in Fischer, which the Ohio Supreme Court decided after Askew’s resentencing proceeding but before the Ohio Court of Appeals decided his appeal from resentencing, the Ohio Supreme Court impliedly overruled Singleton and Bezak and held that “when an appellate court concludes that a sentence imposed by a trial court is in part void, only the portion that is void may be vacated or otherwise amended.” Fischer, 942 N.E.2d at 341. The Warden contends that Ohio courts have since interpreted Fischer as forbidding trial courts from reconsidering other parts of a defendant’s sentence when amending a judgment entry to include or correct post-release conditions of control. See, e.g., State v. Watson, No. 25401, 2011 WL 3689168, at *1 (Ohio Ct. App. Aug. 24, 2011). Because Ohio law allows new rules of law to apply to all cases in which review is pending, see Ali v. State, 819 N.E.2d 687, 688 (Ohio 2004) (per curiam), in the wake of Fischer, state appellate courts vacated judgments in a number of cases in which the Court of Common Pleas had conducted a de novo resentencing hearing pursuant to Singleton prior to the Fischer decision. See, e.g., State v. Ewers, No. 2011-CAA-05WL 6400247, at *2–3 (Ohio Ct. App. Dec. 15, 2011); State v. Cool, Nos. 25135, 25214, 2011 WL 1197636, at *2 (Ohio Ct. App. Mar. 31, 2011). Drawing on these cases, the Warden argues that because Askew’s case was pending when Fischer was decided, Askew’s original sentence effectively remained intact as a matter of state law and his 2010 resentencing proceeding did no more than correct a “technical error,” which could not create a new Case No. 13-4171 Askew v. Bradshaw “judgment” within the meaning of Magwood. See Appellee Br. 18–25; see also Lampton, 667 F.3d at 589–90.

We need not revisit the question of whether an order entering conditions of post-release control, without more, creates a new judgment that is capable of resetting the “second or successive” count because the resentencing proceeding in Askew’s case went well beyond such a minor amendment: The Ohio Court of Appeals affirmed in full the judgment of the Court of Common Pleas after that court vacated Askew’s sentence, conducted a de novo sentencing hearing, and entered a new sentence. Unlike other post-Fischer appeals involving defendants resentenced pursuant to Singleton before Fischer was decided, in which state appellate courts vacated trial-court judgments that purported to impose entirely new sentences, the Ohio Court of Appeals never held or implied that the trial court’s de novo resentencing hearing in Askew’s case was void, or that the imposition of a new sentence in the case was inconsistent with Fischer. On the contrary, the Ohio Court of Appeals affirmed the judgment of the Court of Common Pleas without qualification. Compare Askew, 2011 WL 578762, at *2 (“The judgment of the Stark County Court of Common Pleas is affirmed.”), with, e.g., Watson, 2011 WL 3689168, at *1 (“Because the trial court lacked the jurisdiction to address anything other than post-release control, we must vacate the portions of the trial court’s April 19, 2010 journal entry that do not relate to the proper imposition of post-release control.”).

Though the Warden correctly points out that the Ohio Court of Appeals mentioned Fischer in the course of its opinion dismissing Askew’s assignments of error, the court did not do so to explain the then-novel proposition that the trial court could not vacate a defendant’s sentence when entering conditions of post-release control. On the contrary, the court cited Fischer as “validat[ion]” of its own pre-Fischer holding that “resentencings do not allow a Case No. 13-4171 Askew v. Bradshaw defendant to challenge anew his conviction[s] as such is barred under the principles of law of the case and/or res judicata.” Askew, 2011 WL 578762, at *2 (emphasis added). Accordingly, the reopening of Askew’s sentence resulted not in a minor or technical amendment, but rather in the imposition of an entirely new sentence, just as in King.

In this case, the Ohio Court of Common Pleas’s decisions to vacate Askew’s sentence, conduct a de novo sentencing hearing, and resentence Askew, all of which were affirmed on appeal, created a new judgment within the meaning of Magwood. Because Magwood and King provide that the first timely federal habeas application that attacks a new judgment is not “second or successive” for purposes of AEDPA, the district court erred when it dismissed Askew’s petition—which was the first to follow his new judgment—on the basis that it was “second or successive.”

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This case is not one in which the Court of Common Pleas amended a judgment merely to add conditions of post-release control. Nor does Askew’s petition present a situation in which the Ohio Court of Appeals invalidated a trial court’s imposition of a new sentence pursuant to Singleton on the ground that imposing a new sentence is inconsistent with Fischer. Whether or not a limited amendment creates a new “judgment” within the meaning of Magwood is thus a question for another day. Based on the facts of this case, we hold only that Askew’s petition is not “second or successive.” Because the Ohio Court of Appeals affirmed in full Askew’s new sentence, which the Court of Common Pleas imposed after vacating Askew’s first sentence, reviewing a new sentencing memorandum, and conducting a de novo resentencing hearing, Askew’s instant petition challenges a new judgment. And because Magwood and King dictate that a habeas Case No. 13-4171 Askew v. Bradshaw petitioner’s second-in-time application is not “second or successive” if it challenges a new judgment, the district court had jurisdiction to consider Askew’s application. Accordingly, we REVERSE the district court’s dismissal of Askew’s petition and REMAND this case to the

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